<%-- Page Title--%> Law history <%-- End Page Title--%>

November 28, 2004 

Gender Integration & International Criminal Court

Sultana Razia

Gender refers to the socially constructed differences between men and women, which are not essential or inevitable products of biological sex differences. For more than two decades, the term "gender" has been used in UN documents in this sense.

In 1945, the Statutes of the Nuremberg and Tokyo Tribunals failed to include rape under their jurisdiction. After, that in 1946-48 when sexual violence was widespread and when the European and Japanese Military allegedly practised sexual slavery on a large scale, the issue of "comfort women " was not addressed by international military tribunals.

Gradually women victims of war crimes gained more international legal protection on paper after World War II, but women suffered even greater violations by rapists who escaped prosecution. Four Geneva conventions were drafted in 1949 to codify humanitarian law. War crimes, as defined in these instruments, included mistreatment of enemy aliens during international armed conflicts. Article 27 of the Fourth Geneva Convention to protect civilians during war states: "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." Common Article 3 of all four Geneva Conventions applies to "armed conflict not of an international character" and proscribes "outrages upon personal dignity, in particular humiliating and degrading treatment . . . at any time and in any place whatsoever..."

The UN failed to establish a permanent international criminal tribunal to enforce the Geneva Conventions, the 1948 Genocide Convention, or the Nuremberg precedent. U.S. courts had jurisdiction over soldiers indicted for rape in Vietnam, but those charges were dismissed. The U.S. military established brothels with paid Vietnamese sex workers.

When Bangalis fought for an independent Bangladesh in 1971, West Pakistani soldiers allegedly raped 200,000 Bangali women. Common Article 3 of the Geneva Conventions applied to that internal armed conflict, but unfortunately, no international authority had criminal jurisdiction over those offences.

In 1977, Protocol II to Geneva Conventions expanded on that article by expressly covering "rape, enforced prostitution and any form of indecent assault" in non-international conflicts.

For nearly 50 years the issue of "Comfort women" used by the Japanese military remained in cold storage. During the late 1980s and the 1990s, international movements seeking trial and reparations for "comfort woman" started to take place and addressed the issue. In 1993 Vienna World Conference on Human Rights felt the need to address the grave violations of women's human rights as a part of UN agenda. Later, the 4th World Conference on Women in Beijing in 1995, adopted the platform for action to affirm 'rape' as a war crime.

Women activists with non governmental organisations successfully lobbied the UN for new human rights standards on sex discrimination and sexual violence in times of war or peace. Human rights advocates brought claims to the Inter-American Court and the European Courts of Human Rights claiming that rape amounted to torture in violation of regional treaties. Under the U.S. Alien Tort Claims Act, women from Ethiopia and Bosnia brought civil actions to recover damages for sexual attacks.

Human rights NGOs documented mass rapes as a weapon of war in Guatemala, El Salvador, Liberia, Kuwait and especially the former Yugoslavia. As part of an "ethnic cleansing" strategy, Bosnian Serbs established rape camps allegedly and deliberately impregnated Muslim women. Rapists calculated that the children of their victims would be regarded as Serbian like the father, and that Muslim men would then reject the Muslim woman victims of rape.

In response, women activists made certain that the International Tribunals for the Former Yugoslavia and Rwanda were entrusted with the responsibility of prosecuting rape as a war crime. They pressed effectively for more women judges, prosecutors, and court personnel.

In 1998, the Rwanda Tribunal defined rape as a form of genocide in one of its interpretations (Akayesu case) and the Yougoslavia Tribunal identified rape as a form of torture in other judgements (Celebici and Furundzija judgments).

In negotiations for a permanent International Criminal Court, the NGOs lobbied successfully for a new language on forced pregnancy, but failed to gain formal assurance of gender balance in the selection of judges and prosecutors. As defined in the Statute, Crimes, against humanity would explicitly include "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity... when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack..."

Thus on July 17, 1998 "Rome Statute" of ICC was adopted by the vote of 120-7 which codified for the first time rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, sexual violence as war crimes and for the first time in the history crime against humanity was addressed so elaborately.

From July 1, 2002 the Interna-tional Criminal Court came into force and it is hoped that all gender related crimes will be dealt with effectively and that the rights of victims will be protected under its jurisdiction.

The author is a law desk assistant in The Daily Star.